NRS 199.120 Definition; penalties. A person, having taken a lawful oath or made affirmation in a judicial proceeding or in any other matter where, by law, an oath or affirmation is required and no other penalty is prescribed, who:

1. Willfully makes an unqualified statement of that which the person does not know to be true;

2. Swears or affirms willfully and falsely in a matter material to the issue or point in question;

3. Suborns any other person to make such an unqualified statement or to swear or affirm in such a manner;

4. Executes an affidavit pursuant to NRS 15.010 which contains a false statement, or suborns any other person to do so; or

5. Executes an affidavit or other instrument which contains a false statement before a person authorized to administer oaths or suborns any other person to do so,

Ê is guilty of perjury or subornation of perjury, as the case may be, which is a category D felony and shall be punished as provided in NRS 193.130.

1. A person who makes, executes or signs or causes to be made, executed or signed, any false or fictitious affidavit, complaint, deposition, or other instrument in writing before any officer or person authorized to administer oaths, for the purpose or with the intent of securing a warrant for the arrest of any other person, or for the purpose of securing a warrant for the searching of the premises, goods, chattels or effects, or of seizing the goods, chattels or effects, or of seizing anything in the possession of any other person, is guilty of perjury which is a category D felony.

2. A person who commits any of the acts or offenses defined or set out in subsection 1 shall be punished as provided in NRS 193.130.

The NSA's Surveillance Is UnconstitutionalCongress or the courts should put a stop to these unreasonable data seizures.By RANDY E. BARNETT

Due largely to unauthorized leaks, we now know that the National Security Agency has seized from private companies voluminous data on the phone and Internet usage of all U.S. citizens. We've also learned that the United States Foreign Intelligence Surveillance Court has approved the constitutionality of these seizures in secret proceedings in which only the government appears, and in opinions kept secret even from the private companies from whom the data are seized.

If this weren't disturbing enough, the Consumer Financial Protection Bureau, created by the 2010 Dodd-Frank financial reform, is compiling a massive database of citizens' personal information—including monthly credit-card, mortgage, car and other payments—ostensibly to protect consumers from abuses by financial institutions.

The new National Security Agency (NSA) Utah Data Center facility is seen under construction in Bluffdale, Utah.

All of this dangerously violates the most fundamental principles of our republican form of government. The Fourth Amendment has two parts: First, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Second, that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

By banning unreasonable "seizures" of a person's "papers," the Fourth Amendment clearly protects what we today call "informational privacy." Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers' trust.

As other legal scholars, most notably Yale law professor Akhil Reed Amar, have pointed out, when the Fourth Amendment was ratified in 1791 as part of the Bill of Rights, government agents were liable for damages in civil tort actions for trespass. The Seventh Amendment preserved the right to have a jury composed of ordinary citizens pass upon the "reasonableness" of any searches or seizures. Because judges were not trusted to jealously guard the liberties of the people, the Fourth Amendment restricted the issuance of warrants to the heightened requirements of "probable cause" and specificity.

Over time, as law-enforcement agents were granted qualified immunity from civil suits, it fell mainly to judges to assess the "reasonableness" of a government search or seizure during a criminal prosecution, thereby undermining the original republican scheme of holding law enforcement accountable to citizen juries.

True, judges have long been approving search warrants by relying on ex parte affidavits from law enforcement. With the NSA's surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this "metadata" can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of "unreasonable," akin to the "general warrants" issued by the Crown to authorize searches of Colonial Americans.

Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property "without due process of law." Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.

In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants. For the people to control their servants, however, they must know what their servants are doing.

The secrecy of these programs makes it impossible to hold elected officials and appointed bureaucrats accountable. Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants' conduct in office. Yet such judgment and control is impossible without the information that such secret programs conceal. Had it not been for recent leaks, the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.

Even if these blanket data-seizure programs are perfectly proper now, the technical capability they create makes it far easier for government to violate the rights of the people in the future. Consider why gun rights advocates so vociferously oppose gun registration. By providing the government with information about the location of private arms, gun registries make it feasible for gun confiscation to take place in the future when the political and legal climate may have shifted. The only effective way to prevent the confiscation of firearms tomorrow is to deprive authorities of the means to do so today.

Like gun registries, these NSA and CFPB databanks make it feasible for government workers to peruse the private contents of our electronic communication and financial transactions without our knowledge or consent. All it takes is the will, combined with the right political climate.

Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs. Both practices constitute a present danger to popular sovereignty and the rights retained by the people.

Mr. Barnett is a professor of constitutional law at Georgetown University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton University, 2005).

Two areas in which my brethren are constantly creating self inflicted trouble is the complete misunderstanding or willful ignorance of the laws concerning the recording of police activity as well as the laws concerning whether or not a citizen must provide identification.

Before I jump into these two issues, I want to point out that in my experience, video clears more peace officers of false accusations than it catches those committing malevolent acts. However, the former simply don’t make it to the all knowing interweb. Often, complaints evaporate once the complainant is invited to come watch the video.

I also want to point out that I understand the divided attention dilemma for peace officers. It is difficult enough to conduct business and be observant of one’s surroundings. Having one’s attention divided even more by having another person interjected into the mix doesn’t make things easier, but use their camera as plus for you. Let it catch you doing things the right way instead of doing something that makes you the next big YouTube star.

The Issue of Videoing Police Activity

It is perfectly legal for a citizen to record police activity. This issue has been addressed recently by two federal appeals court circuits, both circuits upheld the practice as protected by the First Amendment. The Supreme Court refused to take either of the cases on appeal thus letting stand the rulings of the lower courts.

The first of these cases comes out of Massachusetts (2011) in which police arrested an individual who was videoing them while they arrested a suspect. His cell phone was also seized. The police based their charges on a state law concerning wiretapping. The criminal charges were dismissed, and the individual filed a lawsuit. The court framed the issue as a First Amendment issue and ruled in the favor of the citizen. Former Providence, Rhode Island, Police Captain Jack Ryan, who is also an attorney, summarized the case here.

The second case comes out of Illinois (2012) where the state legislature specifically made it a crime to record police activity. This law was challenged, and the court struck it down on First Amendment grounds.

The courts are clear on this issue. There is no ambiguity on the matter. My message to my brethren is also simple: unless a person is materially interfering while videoing, simply leave them alone. If you are worried about what the video will capture, the issue is with you and not the person taking the video. Don’t take the bait.

Demanding Identification

There is no law in Georgia that allows a peace officer carte blanche authority to compel a person to provide identification. Whats-more, there is no law requiring a person to even obtain or possess identification in general. Requirements for identification are linked to specific activities, and persons not engaged in those activities need not possess identification. For instance, the requirement for an individual to have a driver’s license only applies if a person is operating a vehicle that requires a license to operate it in the first place and the vehicle is being operated in a location for which the operator must be licensed to do so.

What I mean by no carte blanche is that officers simply cannot demand identity from a person and then arrest that person for failure to comply. Remember that any seizure of a person requires at minimum reasonable articulable suspicion of a crime (see above link on police-citizen contacts), and using a show of authority to compel identification is a seizure. If the person (and/or their stuff) is not free to go then the person (and/or their stuff) is seized. If, for instance, a peace officer approaches a citizen and demands identification while telling the individual they are not free to leave, and then said peace officer takes away the individual’s cell phone, both the person and their property have been seized under the Fourth Amendment. Needless to say, attempting to delete a video from the phone is not a good idea.

In Conclusion

It is perfectly legal to ask someone for their identification for any or no reason. However, once the show of authority is made, being able to articulate specific facts when taken together as a whole indicate that a person is involved in criminal activity is a must on the part of the officer. Merely being “suspicious” is not enough.

You (and Your Cellphone) on Candid CameraBy THE EDITORIAL BOARDPublished: July 18, 2013

Anybody who shops at online stores like Amazon.com knows that those merchants track customers, what they look at, what they buy and how long they spend on the site. Perhaps it’s not all that surprising that traditional retailers — with little or no notice — have started tracking shoppers in stores, using security cameras and devices that can monitor the location of customer cellphones.Related

In this era of big data and cheap monitoring equipment and software, national chains like Family Dollar and even neighborhood cafes are using tracking technologies to offer coupons to customers and gather information about their in-store shopping habits, according to a recent article in The Times. Retailers say they need to monitor customers so they can help them find what they want. If you linger in the men’s formal wear section, for instance, a store might send you a coupon that offers you a free shirt with the purchase of a new suit.

Retailers also argue that they collect no more, and often a lot less, information about their customers than Web merchants do. The Federal Trade Commission says it has not found evidence that retailers are using facial recognition technology that could allow them to identify and build profiles of customers. But what’s disturbing about these tracking methods is that stores are mostly doing so without informing their customers.

The technology that allows stores to track shoppers’ cellphones, for instance, works even when customers do not log on to the Wi-Fi networks of stores. The only way a cellphone user can avoid being tracked is to turn off the Wi-Fi feature on their phones, which few are likely to do if they are unaware of the monitoring in the first place. While a few retailers like Nordstrom have posted signs telling customers that they were being monitored in this way, many others do not do so. (Nordstrom stopped tracking cellphones in May, partly as a result of complaints from customers.)

If stores want to track their customers, they should tell the public what they are doing and give people the ability to opt out of monitoring. Many shoppers say they are willing to give information about themselves in exchange for special deals and promotions. But some consumers go to physical stores because they want to protect their privacy. Traditional retailers would be smart not to alienate customers by surreptitiously tracking them.

Staking out new ground in the noisy debate about technology and privacy in law enforcement, the New Jersey Supreme Court on Thursday ordered that the police will now have to get a search warrant before obtaining tracking information from cellphone providers.Related

The ruling puts the state at the forefront of efforts to define the boundaries around a law enforcement practice that a national survey last year showed was routine, and typically done without court oversight or public awareness. With lower courts divided on the use of cellphone tracking data, legal experts say, the issue is likely to end up before the United States Supreme Court.

The New Jersey decision also underscores the extent of the battles over government intrusion into personal data in a quickly advancing digital age, from small town police departments to the National Security Agency’s surveillance of e-mail and cellphone conversations.

Several states and Congress are considering legislation to require that warrants based on probable cause be obtained before investigators can get cellphone data. Montana recently became the first state to pass such a measure into law. The California Legislature approved a similar bill in 2012, but Gov. Jerry Brown vetoed it, saying it did not “strike the right balance” between the needs of law enforcement and the rights of citizens.

The Florida Supreme Court ruled in May that the police could seize a cellphone without a warrant, but needed a warrant to search it. And a case before the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., is weighing whether investigators acted legally when they got a court order, but not a warrant, to obtain 221 days of cellphone location data for suspects in an armed robbery case in Maryland.

“This type of issue will play out in many jurisdictions for the simple reason that cellphones are so prevalent in daily life,” said Peter G. Verniero, a former New Jersey attorney general and State Supreme Court justice. “The decision affects just about everybody.”

“Law enforcement is trying to keep up with technology, as well they should,” he added. “It’s very legitimate for law enforcement to use technology, but this court decision is a strong reminder that constitutional standards still apply. The courts have to adapt, and law enforcement has to adapt.”

The ruling involved a case that began with a string of burglaries in homes in Middletown, N.J. A court ordered the tracing of a cellphone that had been stolen from one home, which led to a man in a bar in nearby Asbury Park, who said his cousin had sold him the phone, and had been involved in burglaries. The police then used data they got from T-Mobile to locate the suspect, Thomas W. Earls, at three points on a subsequent evening, tracking him to a motel room where he was found with a television and suitcases full of stolen goods.

In a unanimous decision, the State Supreme Court said that when people entered cellphone contracts, “they can reasonably expect that their personal information will remain private.”

The justices recognized that this departed somewhat from federal case law. But they relied in part on a United States Supreme Court decision last year that the police could not attach a Global Positioning System to a suspect’s car without a warrant. A cellphone, the New Jersey justices said, was like a GPS device.

“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records,” said the opinion, written by Chief Justice Stuart Rabner. “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go — which doctors, religious services and stores they visit — but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers and others.”

Besides establishing a firmer legal bar for the police to obtain cellphone data, the Supreme Court also remanded the case to the appeals court to determine whether the evidence collected using the cellphone records could be admitted in court under an “emergency aid exception” to the requirement for a warrant.

Last year, the American Civil Liberties Union reviewed records from more than 200 local police departments, large and small, and found that they were aggressively using cellphone tracking data, so much so that some cellphone companies were marketing a catalog of “surveillance fees” to police departments, to track suspects or even to download text messages sent to a phone that had been turned off. Departments were using the information for emergency and nonemergency cases.

Some departments had manuals advising officers not to reveal the practice to the public. Others defended its use. The police in Grand Rapids, Mich., for example, had used a cellphone locator to find a stabbing victim who was in a basement hiding from his attacker.

The law has been slow to keep up. The Florida decision in May rejected the reasoning of a lower court that had based its approval of cellphone tracking on a 1973 United States Supreme Court case that allowed heroin found in a suspect’s cigarette pack to be introduced as evidence. “Attempting to correlate a crumpled package of cigarettes to the cellphones of today is like comparing a one-cell organism to a human being,” the decision said.

Nationally, court decisions about cellphone tracking have considered whether it comports with the Fourth Amendment, which guards against unreasonable searches and seizures. But the justices in New Jersey based their decision on the State Constitution, which affords greater privacy protection. The state court has previously ruled in favor of electronic privacy. In 2008, it said that police had to obtain a subpoena from a grand jury to obtain Internet provider records.

“The inescapable logic of this decision should be influential beyond New Jersey because it makes complete sense as to an individual’s reasonable expectation of privacy,” said Rubin Sinins, who filed a friend of the court brief on behalf of the American Civil Liberties Union and the New Jersey Association of Criminal Defense Lawyers.

It’s hardly a secret that Amazon, Facebook and Google monitor what their users do online and show them targeted ads based on that data. But many users do not fully appreciate that this is also done by dozens of obscure online advertising networks. These companies place small files known as cookies on the computers and phones of people who visit Web sites that display ads they bought. These cookies allow them to serve up ads for, say, shoes that a consumer looked at on one site even as he moves to other sites. Such tracking is pervasive now, and the data is often put into detailed profiles that can also include information from public records and other sources like cash registers at physical stores.

Privacy advocates and policy makers have long talked about requiring software makers to offer users an easy and effective way to opt out of such stealth monitoring through a setting on their Web browsers. Done right, such a system could be as simple as registering your phone number on the do-not-call list created by the Federal Trade Commission to reduce the scourge of unwanted telemarketing calls.

For the last two years, a group of Internet and advertising businesses and experts has been working on this problem. It is hoping to create a voluntary standard that would be adopted by companies that make Web browsers, the ad networks and Web sites. But advocates for greater privacy and groups representing advertising and marketing companies remain far apart on several important issues, like what constitutes tracking.

One big unresolved issue is what types of information advertising companies would be able to collect under the new standard. Under one proposal, ad networks could still collect data on the kinds of Web sites a user was interested in, but the companies would not be able to easily identify the individual by name and other personal details. Unfortunately, this would create a loophole that could be easily abused, rendering the standard meaningless.

For any do-not-track standard to be effective and credible, it has to be simple and comprehensive. Users who choose not to be tracked should be assured that ad networks are not collecting information about which sites they visit. Online businesses have long argued that do-not-track and other privacy protections would hurt them by reducing advertisers’ ability to target consumers most interested in their products. But there should be ways for companies to advertise their products and services without tracking these people against their will. This month, for example, Twitter said it would send ads to users based on their behavior but would let users opt out of such advertising.

Some makers of Web browsers, like Microsoft, Apple and Mozilla, are responding to consumer demand for greater privacy by building more protections into their software. But ad networks are responding to those protections by finding new ways to monitor people. For example, some networks are using new kinds of tracking cookies that are hard to detect and delete. This arms race benefits no one and leaves consumers more confused and frustrated.

Ultimately, policy makers will have to step in. Voluntary industry standards, if they can be achieved, are a good start, but the best way to ensure privacy is strong federal legislation backed by tough enforcement. European lawmakers are working on a new privacy law with some strong protections and Congress should move in that direction, too.

When Timothy P. Murray crashed his government-issued Ford Crown Victoria in 2011, he was fortunate, as car accidents go. Mr. Murray, then the lieutenant governor of Massachusetts, was not seriously hurt, and he told the police he was wearing a seat belt and was not speeding.

Within the programming of the air bag control module is the capability to store crash data on an event data recorder.

But a different story soon emerged. Mr. Murray was driving over 100 miles an hour and was not wearing a seat belt, according to the computer in his car that tracks certain actions. He was given a $555 ticket; he later said he had fallen asleep.

The case put Mr. Murray at the center of a growing debate over a little-known but increasingly important piece of equipment buried deep inside a car: the event data recorder, more commonly known as the black box.

About 96 percent of all new vehicles sold in the United States have the boxes, and in September 2014, if the National Highway Traffic Safety Administration has its way, all will have them.

The boxes have long been used by car companies to assess the performance of their vehicles. But data stored in the devices is increasingly being used to identify safety problems in cars and as evidence in traffic accidents and criminal cases. And the trove of data inside the boxes has raised privacy concerns, including questions about who owns the information, and what it can be used for, even as critics have raised questions about its reliability.

To federal regulators, law enforcement authorities and insurance companies, the data is an indispensable tool to investigate crashes.

The black boxes “provide critical safety information that might not otherwise be available to N.H.T.S.A. to evaluate what happened during a crash — and what future steps could be taken to save lives and prevent injuries,” David L. Strickland, the safety agency’s administrator, said in a statement.

But to consumer advocates, the data is only the latest example of governments and companies having too much access to private information. Once gathered, they say, the data can be used against car owners, to find fault in accidents or in criminal investigations.

“These cars are equipped with computers that collect massive amounts of data,” said Khaliah Barnes of the Electronic Privacy Information Center, a Washington-based consumer group. “Without protections, it can lead to all kinds of abuse.”

What’s more, consumer advocates say, government officials have yet to provide consistent guidelines on how the data should be used.

“There are no clear standards that say, this is a permissible use of the data and this is not,” Ms. Barnes said.

Fourteen states, including New York, have passed laws that say that, even though the data belongs to the vehicle’s owner, law enforcement officials and those involved in civil litigation can gain access to the black boxes with a court order.

In these states, lawyers may subpoena the data for criminal investigations and civil lawsuits, making the information accessible to third parties, including law enforcement or insurance companies that could cancel a driver’s policy or raise a driver’s premium based on the recorder’s data.

In Mr. Murray’s case, a court order was not required to release the data to investigators. Massachusetts is not among the states to pass a law governing access to the data. Asked about the case, Mr. Murray, who did not contest the ticket and who resigned as lieutenant governor in June to become head of the Chamber of Commerce in Worcester, Mass., declined to comment.

Current regulations require that the presence of the black box be disclosed in the owner’s manual. But the vast majority of drivers who do not read the manual thoroughly may not know that their vehicle can capture and record their speed, brake position, seat belt use and other data each time they get behind the wheel.

Unlike the black boxes on airplanes, which continually record data including audio and system performance, the cars’ recorders capture only the few seconds surrounding a crash or air bag deployment. A separate device extracts the data, which is then analyzed through computer software.

The Alliance of Automobile Manufacturers, a Washington-based trade association that represents 12 automakers including General Motors and Chrysler, said it supported the mandate because the recorders helped to monitor passenger safety.

“Event data recorders help our engineers and researchers understand how cars perform in the real world, and one of our priorities for E.D.R.’s continues to be preserving consumer privacy,” said Wade Newton, a spokesman for the trade association. “Automakers don’t access E.D.R. data without consumer permission, and we believe that any government requirements to install E.D.R.’s on all vehicles must include steps to protect consumer privacy.”

In 2009, Anthony Niemeyer died after crashing a rented Ford Focus in Las Vegas. His widow, Kathryn, sued both Ford Motor and Hertz, contending that the air bag system failed to deploy.

The black box, however, derailed Ms. Niemeyer’s assertion that her husband had been traveling fast enough for the air bag to deploy. =========================

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Though Ms. Niemeyer lost the suit last year, her lawyer, Daniel T. Ryan of St. Louis, was successful in excluding the black box data as evidence on the grounds that the device is not fully reliable. The judge in the case ruled that because an engineer working on behalf of the defense retrieved the data, the plaintiffs, who maintained there were errors, had no way to independently verify it.

“It’s data that has not been shown to be absolutely reliable,” Mr. Ryan said. “It’s not black and white.”

The origins of black boxes, which are the size of about two decks of cards and are situated under the center console, date to the 1990 model year, when General Motors introduced them to conduct quality studies. Since then, their use and the scope of the data they collect has expanded.

The lack of standardization among manufacturers has made it difficult to extract the data, most notably during the investigations into the crashes caused by sudden, unintended acceleration in some Toyota vehicles.

Until recently, crash investigators needed an automaker’s proprietary reader as well as the expertise to analyze the data. The safety administration’s regulations will help enable universal access to the data by using a commercially available tool. At the same time, police departments are receiving training on the new regulations. In Romulus, N.Y., last week, the Collision Safety Institute, a consultancy in San Diego, helped teach New York State Police investigators how to read the devices.

But privacy advocates have expressed concern that the data collected will only grow to include a wider time frame and other elements like GPS and location-based services.

“The rabbit hole goes very deep when talking about this stuff,” said Thomas Kowalick, an expert in event data recorders and a former co-chairman of the federal committee that set the standard for black boxes.

Today, the boxes have spawned a cottage industry for YouTube videos on how to expunge the data. And Mr. Kowalick, seeing an opportunity, invented a device that safeguards access to in-vehicle electronics networks. It is controlled by the vehicle’s owner with a key and is useful in the event of theft, he said.

“For most of the 100-year history of the car, it used to be ‘he said, she said,’ ” Mr. Kowalick said. “That’s no longer going to be the way.”

--US Justice Dept. Says NSA Snooping Does Not Violate Constitutional Rights (July 19, 2013)The US government has responded to a series of lawsuits challenging the NSA's authority to snoop on phone records, saying that the intelligence agency's activity cannot be challenged in court.

"You see, it's not the blood you spill that gets you what you want, it's the blood you share. Your family, your friendships, your community, these are the most valuable things a man can have." Before Dishonor - Hatebreed

From the article:As I drove their vehicles for more than an hour, Miller and Valasek showed that they’ve reverse-engineered enough of the software of the Escape and the Toyota Prius (both the 2010 model) to demonstrate a range of nasty surprises: everything from annoyances like uncontrollably blasting the horn to serious hazards like slamming on the Prius’ brakes at high speeds. They sent commands from their laptops that killed power steering, spoofed the GPS and made pathological liars out of speedometers and odometers. Finally they directed me out to a country road, where Valasek showed that he could violently jerk the Prius’ steering at any speed, threatening to send us into a cornfield or a head-on collision. “Imagine you’re driving down a highway at 80 ,” Valasek says. “You’re going into the car next to you or into oncoming traffic. That’s going to be bad times.”

FBI Taps Hacker Tactics to Spy on SuspectsLaw-Enforcement Officials Expand Use of Tools Such as Spyware as People Under Investigation 'Go Dark,' Evading WiretapsBy JENNIFER VALENTINO-DEVRIES and DANNY YADRON

Law-enforcement officials in the U.S. are expanding the use of tools routinely used by computer hackers to gather information on suspects, bringing the criminal wiretap into the cyber age.

Federal agencies have largely kept quiet about these capabilities, but court documents and interviews with people involved in the programs provide new details about the hacking tools, including spyware delivered to computers and phones through email or Web links—techniques more commonly associated with attacks by criminals.

People familiar with the Federal Bureau of Investigation's programs say that the use of hacking tools under court orders has grown as agents seek to keep up with suspects who use new communications technology, including some types of online chat and encryption tools. The use of such communications, which can't be wiretapped like a phone, is called "going dark" among law enforcement.

A spokeswoman for the FBI declined to comment.

The FBI develops some hacking tools internally and purchases others from the private sector. With such technology, the bureau can remotely activate the microphones in phones running Google Inc.'s GOOG +0.26% Android software to record conversations, one former U.S. official said. It can do the same to microphones in laptops without the user knowing, the person said. Google declined to comment.

The bureau typically uses hacking in cases involving organized crime, child pornography or counterterrorism, a former U.S. official said. It is loath to use these tools when investigating hackers, out of fear the suspect will discover and publicize the technique, the person said.

The FBI has been developing hacking tools for more than a decade, but rarely discloses its techniques publicly in legal cases.Related

Digits: How the FBI Hacks Criminal Suspects

Earlier this year, a federal warrant application in a Texas identity-theft case sought to use software to extract files and covertly take photos using a computer's camera, according to court documents. The judge denied the application, saying, among other things, that he wanted more information on how data collected from the computer would be minimized to remove information on innocent people.

Since at least 2005, the FBI has been using "web bugs" that can gather a computer's Internet address, lists of programs running and other data, according to documents disclosed in 2011. The FBI used that type of tool in 2007 to trace a person who was eventually convicted of emailing bomb threats in Washington state, for example.

The FBI "hires people who have hacking skill, and they purchase tools that are capable of doing these things," said a former official in the agency's cyber division. The tools are used when other surveillance methods won't work: "When you do, it's because you don't have any other choice," the official said.

Surveillance technologies are coming under increased scrutiny after disclosures about data collection by the National Security Agency. The NSA gathers bulk data on millions of Americans, but former U.S. officials say law-enforcement hacking is targeted at very specific cases and used sparingly.

Still, civil-liberties advocates say there should be clear legal guidelines to ensure hacking tools aren't misused. "People should understand that local cops are going to be hacking into surveillance targets," said Christopher Soghoian, principal technologist at the American Civil Liberties Union. "We should have a debate about that."

Mr. Soghoian, who is presenting on the topic Friday at the DefCon hacking conference in Las Vegas, said information about the practice is slipping out as a small industry has emerged to sell hacking tools to law enforcement. He has found posts and resumes on social networks in which people discuss their work at private companies helping the FBI with surveillance.

A search warrant would be required to get content such as files from a suspect's computer, said Mark Eckenwiler, a senior counsel at Perkins Coie LLP who until December was the Justice Department's primary authority on federal criminal surveillance law. Continuing surveillance would necessitate an even stricter standard, the kind used to grant wiretaps.

But if the software gathers only communications-routing "metadata"—like Internet protocol addresses or the "to" and "from" lines in emails—a court order under a lower standard might suffice if the program is delivered remotely, such as through an Internet link, he said. That is because nobody is physically touching the suspect's property, he added.

An official at the Justice Department said it determines what legal authority to seek for such surveillance "on a case-by-case basis." But the official added that the department's approach is exemplified by the 2007 Washington bomb-threat case, in which the government sought a warrant even though no agents touched the computer and the spyware gathered only metadata.

In 2001, the FBI faced criticism from civil-liberties advocates for declining to disclose how it installed a program to record the keystrokes on the computer of mobster Nicodemo Scarfo Jr. to capture a password he was using to encrypt a document. He was eventually convicted.

A group at the FBI called the Remote Operations Unit takes a leading role in the bureau's hacking efforts, according to former officials.

Officers often install surveillance tools on computers remotely, using a document or link that loads software when the person clicks or views it. In some cases, the government has secretly gained physical access to suspects' machines and installed malicious software using a thumb drive, a former U.S. official said.

The bureau has controls to ensure only "relevant data" are scooped up, the person said. A screening team goes through all of the data pulled from the hack to determine what is relevant, then hands off that material to the case team and stops working on the case.

The FBI employs a number of hackers who write custom surveillance software, and also buys software from the private sector, former U.S. officials said.

Italian company HackingTeam SRL opened a sales office in Annapolis, Md., more than a year ago to target North and South America. HackingTeam provides software that can extract information from phones and computers and send it back to a monitoring system. The company declined to disclose its clients or say whether any are in the U.S.

U.K.-based Gamma International offers computer exploits, which take advantage of holes in software to deliver spying tools, according to people familiar with the company. Gamma has marketed "0 day exploits"—meaning that the software maker doesn't yet know about the security hole—for software including Microsoft Corp.'s Internet Explorer, those people said. Gamma, which has marketed its products in the U.S., didn't respond to requests for comment, nor did Microsoft.

I can’t shake my dismay at Gov. Chris Christie’s comments, 12 days ago, on those who question and challenge what we know or think we do of the American national security state.

Speaking at an Aspen Institute gathering attended by major Republican Party donors, a venue at which you really don’t want to make news, Christie jumped at the chance to speak on the tension between civil liberties and government surveillance. He apparently doesn’t see any tension.

Christie doesn’t like seeing the nature and extent of government surveillance being questioned or doubted. He doesn’t like “this strain of libertarianism that’s going through both parties right now.” In fact, it reflects “a very dangerous thought.” He said: “These esoteric, intellectual debates—I want them to come to New Jersey and sit across from the widows and the orphans and have that conversation.” Those who challenge surveillance programs may come to regret it: “The next attack that comes, that kills thousands of Americans as a result, people are going to be looking back on the people having this intellectual debate and wondering whether they put—” Here, according to Jonathan Martin’s report in the New York Times, Christie cut himself off.

The audience—again, including GOP moneymen, at the tony Aspen Institute—was, according to Martin, enthralled. They loved it.

Libertarians and many others did not. I did not.

Stipulated: Christie was speaking off the cuff, not in a prepared address that had been thought through but in Q&A in front of a supportive audience. Politicians can get goosey in circumstances like that.

But Christie seized on the topic, as Martin noted, addressed it colorfully and bluntly, and knew what he thought. And in the days since he hasn’t walked it back.

So you have to take seriously what he said.

To call growing concerns about the size, depth, history, ways and operations of our now-huge national-security operation “esoteric” or merely abstract is, simply, absurd. Our federal government is involved in massive data collection that apparently includes a database of almost every phone call made in the U.S. The adequacy of oversight for this system is at best unclear. The courts involved are shadowed in secrecy and controversy. Is it really wrong or foolhardy or unacceptably thoughtful to wonder if the surveillance apparatus is excessive, or will be abused, or will erode, or perhaps in time end, any expectation of communications privacy held by honest citizens?

It is not. These are right and appropriate concerns, very American ones.

Consider just two stories from the past few days. The Wall Street Journal’s Jennifer Valentino-Devries and Danny Yadron had a stunning piece Friday that touches on the technological aspect of what our government can now do. The FBI is able to remotely activate microphone on phones running Android software. They can now record conversations in this way. They can do the same with microphones in laptops. They can get to you in a lot of ways! Does this make you nervous? If not, why not?

Reuters has a piece just today reporting that data gathered by the National Security Agency has been shared with the Drug Enforcement Administration. The agency that is supposed to be in charge of counterterrorism is sharing data with an agency working in the area of domestic criminal investigations.

Luckily Lois Lerner is on leave, so the IRS isn’t involved yet.

The concerns of normal Americans about the new world we’re entering—the world where Big Brother seems inexorably to be coming to life and we are all, at least potentially Winston Smith—is not only legitimate, it is wise and historically grounded.

And these concerns are not confined to a group of abstract intellectuals debating how many pixels can dance on the head of a pin. Gallup in June had a majority of Americans, 53%, disapproving of NSA surveillance programs, with only 37% approving of the NSA’s efforts to “compile telephone call logs and Internet communications.” And the poll found the most intense opposition to the programs coming from Republicans, who disapproved by almost 2 to 1.

Rasmussen, at roughly the same time, asked the following question: “The government has been secretly collecting the phone records of millions of Americans for national security purposes regardless of whether there is any suspicion of wrongdoing. Do you favor or oppose the government’s secret collecting of these phone records?” Fifty-nine percent of respondents opposed the collecting telephone records of individuals not suspected of doing anything wrong.

A Fox News poll had 61% disapproving how the administration “is handling the government’s classified surveillance program that collects the phone and Internet records of U.S. citizens.”

So Christie is wrong that concerns and reservations about surveillance are the province of intellectuals and theorists—they’re not. He’s wrong that their concerns are merely abstract—they’re concrete. Americans don’t want to be listened in to, and they don’t want their emails read by strangers, especially the government. His stand isn’t even politically shrewd—it needlessly offends sincere skeptics and isn’t the position of the majority of his party, I suppose with the exception of big ticket donors in Aspen.

N.S.A. Said to Search Content of Messages to and From U.S.By CHARLIE SAVAGEPublished: August 8, 2013 126 Comments• WASHINGTON — The National Security Agency is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials.

The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.

While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching — without warrants — through the contents of Americans’ communications that cross the border reveals more about the scale of its secret operations.

It also adds another element to the unfolding debate, provoked by the disclosures of Edward J. Snowden, the former N.S.A. contractor, about whether the agency has infringed on Americans’ privacy as it scoops up e-mails and phone data in its quest to ferret out foreign intelligence.

Government officials say the cross-border surveillance was authorized by a 2008 law, the FISA Amendments Act, in which Congress approved eavesdropping on domestic soil without warrants as long as the “target” was a noncitizen abroad. Voice communications are not included in that surveillance, the senior official said.

Asked to comment, Judith A. Emmel, an N.S.A. spokeswoman, did not directly address surveillance of cross-border communications. But she said the agency’s activities were lawful and intended to gather intelligence not about Americans but about “foreign powers and their agents, foreign organizations, foreign persons or international terrorists.”

“In carrying out its signals intelligence mission, N.S.A. collects only what it is explicitly authorized to collect,” she said. “Moreover, the agency’s activities are deployed only in response to requirements for information to protect the country and its interests.”

Hints of the surveillance appeared in a set of rules, leaked by Mr. Snowden, for how the N.S.A. may carry out the 2008 FISA law. One paragraph mentions that the agency “seeks to acquire communications about the target that are not to or from the target.” The pages were posted online by the newspaper The Guardian on June 20, but the telltale paragraph, the only rule marked “Top Secret” amid 18 pages of restrictions, went largely overlooked amid other disclosures.

To conduct the surveillance, the N.S.A. is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border. The senior intelligence official, who, like other former and current government officials, spoke on condition of anonymity because of the sensitivity of the topic, said the N.S.A. makes a “clone of selected communication links” to gather the communications, but declined to specify details, like the volume of the data that passes through them.

Computer scientists said that it would be difficult to systematically search the contents of the communications without first gathering nearly all cross-border text-based data; fiber-optic networks work by breaking messages into tiny packets that flow at the speed of light over different pathways to their shared destination, so they would need to be captured and reassembled.

The official said that a computer searches the data for the identifying keywords or other “selectors” and stores those that match so that human analysts could later examine them. The remaining communications, the official said, are deleted; the entire process takes “a small number of seconds,” and the system has no ability to perform “retrospective searching.”

The official said the keyword and other terms were “very precise” to minimize the number of innocent American communications that were flagged by the program. At the same time, the official acknowledged that there had been times when changes by telecommunications providers or in the technology had led to inadvertent overcollection. The N.S.A. monitors for these problems, fixes them and reports such incidents to its overseers in the government, the official said.

The disclosure sheds additional light on statements intelligence officials have made recently, reassuring the public that they do not “target” Americans for surveillance without warrants.

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At a House Intelligence Committee oversight hearing in June, for example, a lawmaker pressed the deputy director of the N.S.A., John Inglis, to say whether the agency listened to the phone calls or read the e-mails and text messages of American citizens. Mr. Inglis replied, “We do not target the content of U.S. person communications without a specific warrant anywhere on the earth.”

Timothy Edgar, a former intelligence official in the Bush and Obama administrations, said that the rule concerning collection “about” a person targeted for surveillance rather than directed at that person had provoked significant internal discussion.

“There is an ambiguity in the law about what it means to ‘target’ someone,” Mr. Edgar, now a visiting professor at Brown, said. “You can never intentionally target someone inside the United States. Those are the words we were looking at. We were most concerned about making sure the procedures only target communications that have one party outside the United States.”

The rule they ended up writing, which was secretly approved by the Foreign Intelligence Surveillance Court, says that the N.S.A. must ensure that one of the participants in any conversation that is acquired when it is searching for conversations about a targeted foreigner must be outside the United States, so that the surveillance is technically directed at the foreign end.

Americans’ communications singled out for further analysis are handled in accordance with “minimization” rules to protect privacy approved by the surveillance court. If private information is not relevant to understanding foreign intelligence, it is deleted; if it is relevant, the agency can retain it and disseminate it to other agencies, the rules show.

While the paragraph hinting at the surveillance has attracted little attention, the American Civil Liberties Union did take note of the “about the target” language in a June 21 post analyzing the larger set of rules, arguing that the language could be interpreted as allowing “bulk” collection of international communications, including of those of Americans.

Jameel Jaffer, a senior lawyer at the A.C.L.U., said Wednesday that such “dragnet surveillance will be poisonous to the freedoms of inquiry and association” because people who know that their communications will be searched will change their behavior.

“They’ll hesitate before visiting controversial Web sites, discussing controversial topics or investigating politically sensitive questions,” Mr. Jaffer said. “Individually, these hesitations might appear to be inconsequential, but the accumulation of them over time will change citizens’ relationship to one another and to the government.” The senior intelligence official argued, however, that it would be inaccurate to portray the N.S.A. as engaging in “bulk collection” of the contents of communications. “ ‘Bulk collection’ is when we collect and retain for some period of time that lets us do retrospective analysis,” the official said. “In this case, we do not do that, so we do not consider this ‘bulk collection.’ ”

Stewart Baker, a former general counsel for the N.S.A., said that such surveillance could be valuable in identifying previously unknown terrorists or spies inside the United States who unwittingly reveal themselves to the agency by discussing a foreign-intelligence “indicator.” He cited a situation in which officials learn that Al Qaeda was planning to use a particular phone number on the day of an attack.

“If someone is sending that number out, chances are they are on the inside of the plot, and I want to find the people who are on the inside of the plot,” he said. The senior intelligence official said that the “about the target” surveillance had been valuable, but said it was difficult to point to any particular terrorist plot that would have been carried out if the surveillance had not taken place. He said it was one tool among many used to assemble a “mosaic” of information in such investigations. He also pointed out that the surveillance was used for other types of foreign-intelligence collection, not just terrorism, the official said.

There has been no public disclosure of any ruling by the Foreign Intelligence Surveillance Court explaining its legal analysis of the 2008 FISA law and the Fourth Amendment as allowing “about the target” searches of Americans’ cross-border communications. But in 2009, the Justice Department’s Office of Legal Counsel signed off on a similar process for searching federal employees’ communications without a warrant to make sure none contain malicious computer code.

That opinion, by Steven G. Bradbury, who led the office in the Bush administration, may echo the still-secret legal analysis. He wrote that because that system, called EINSTEIN 2.0, scanned communications traffic “only for particular malicious computer code” and there was no authorization to acquire the content for unrelated purposes, it “imposes, at worst, a minimal burden upon legitimate privacy rights.”

In a news conference on Friday, President Barack Obama announced plans to take measures to increase transparency on government surveillance programs. He also said the government is "not interested in spying on ordinary people."

WASHINGTON—In a striking policy shift, President Barack Obama on Friday announced plans to overhaul a secret national security court and pledged to take other measures to disclose more information about secret National Security Agency programs.

The new proposals, which Mr. Obama announced at a news conference, will likely ratchet up a national debate over the balance between the controversial spy programs and Americans' privacy.

He acknowledged that the documents revealed by NSA leaker Edward Snowden had initiated debate on surveillance and privacy issues.

The most significant proposal would restructure the secret Foreign Intelligence Surveillance Court to provide for an advocate for privacy concerns. Mr. Obama is also seeking unspecified changes to the Patriot Act to increase oversight and place more constraints on the provision that permits government seizure of business records.

The moves, a concession to civil libertarians and critics of government secrecy, come as Mr. Obama was facing intensifying political pressure from his own party and the unauthorized disclosure of another round of classified information about the NSA programs.

The proposals broadly sought to build public confidence in NSA spy efforts, administration officials said, following weeks of criticism of the administration for its use of the extensive surveillance measures revealed by NSA leaker Edward Snowden.

The two main programs Mr. Snowden revealed that have sparked outrage among lawmakers and civil libertarians are the vast collection on Americans' phone records and a set of court-ordered partnerships with Silicon Valley companies to provide account information for foreign-intelligence investigations.

"Given the history of abuse by governments, it's right to ask questions about surveillance," Mr. Obama said. "It's not enough for me to have confidence in these programs, the American people must have confidence as well."

Given the scale of the phone-data program, he said, he understood concerns about the potential for abuse.

Mr. Obama also sought to tamp town concerns overseas about the government's extensive spying apparatus. "America is not interested in spying on ordinary people," he said.

Mr. Obama's announcement marks a significant about-face on the issue. Just this past June the president defended the program. "I think on balance, we have established a process and a procedure that the American people should feel comfortable about," Mr. Obama said at the time.

The biggest change seeks to restructure the Foreign Intelligence Surveillance Court to provide a privacy advocate. The current court relies on the government making an application to the court and the court deciding whether to approve it.

The court has come under criticism for not only being secret but lacking any formal adversarial process to challenge government-surveillance programs. Critics note that the court received 1,789 applications to conduct electronic surveillance in 2012. The government withdrew one of those applications, and the court didn't reject any of the requests in whole or in part.

Defenders of the process say it includes exchanges between the government and the judges, saying the judges do push back and require changes to programs before they sign off on them.

While the Obama administration had defended the current court structure, administration officials said Friday that new measures were needed to restore public confidence in the court.

Mr. Obama is also seeking unspecified overhauls to the Patriot Act to increase oversight and place more constraints on the provision that permits government seizure of business records. This provision is the basis for the controversial program that collects the phone records of the vast majority of Americans.

In a move to make public more information about how some NSA surveillance programs work, both the Justice Department and NSA are slated to issue new documents to explain the legal underpinnings of surveillance efforts and provide an "operating manual" to put NSA programs in context, senior administration officials said.

NSA will also create a privacy officer post.

Mr. Obama also ordered the Director of National Intelligence to lead an outside review of U.S. surveillance efforts with an interim report due in two months and a final report due at the end of the year. Mr. Obama said the group would focus on how to ensure programs aren't abused and how such programs impact foreign policy.

An early indication of the difficulty ahead came when the spokesman for House Majority Leader John Boehner criticized Mr. Obama for inadequately defending the programs before the president had finished speaking.

"Transparency is important, but we expect the White House to insist that no reform will compromise the operational integrity of the program. That must be the president's red line, and he must enforce it," said his spokesman Brendan Buck. "Our priority should continue to be saving American lives, not saving face."

Mr. Obama's two biggest proposals will require legislation in a Congress that has struggled to complete less controversial bills. In the most potent show of force, the House only narrowly defeated an amendment that called for cutting off funds for the NSA surveillance of phone records. The amendment, by Rep. Justin Amash (R., Mich.) was rejected by a vote of 217-205, with 111 Democrats joining 94 Republicans in support of the measure.

That coalition ranged from libertarian-leaning conservatives like Mr. Amash to old-line liberals such as Rep. John Conyers (D., Mich.). But the amendment faced stiff opposition from the intelligence establishment, evidenced by strong lobbying from the leader of the House and Senate Intelligence Committees and NSA director Keith Alexander for members to vote against it.

Other lawmakers, including some of the White House's most reliable allies, have called for major changes in its intelligence programs. Sen. Richard Blumenthal (D., Conn.) has introduced legislation calling for creating a "special advocate'' to argue in the FISA courts on behalf of the right to keep information private.

The bill was also supported by Senate Majority Whip Richard Durbin (D., Ill.), who said in a recent ABC News interview, "Let's have an advocate for someone standing up for civil liberties to speak up about the privacy of Americans when they make each of these decisions.''

Mr. Obama emerged on the national political scene as a critic of secret government-surveillance programs. He has changed his position on these issues several times since his campaign for U.S. Senate in 2004.

During a 2005 Senate debate over reauthorization of the Patriot Act, Mr. Obama was one of nine senators who signed a letter expressing concern about leaders potentially abusing provisions in the act. He in particular focused on Section 215, which he and the other senators said would allow "fishing expeditions targeting innocent Americans."

White House officials said the president came to Friday's conclusion after a series of discussions with lawmakers and other officials. But the president was facing stiff resistance to his position from members of his own party in Congress.

What is privacy? Why should we want to hold onto it? Why is it important, necessary, precious?

Is it just some prissy relic of the pretechnological past?

We talk about this now because of Edward Snowden, the National Security Agency revelations, and new fears that we are operating, all of us, within what has become or is becoming a massive surveillance state. They log your calls here, they can listen in, they can read your emails. They keep the data in mammoth machines that contain a huge collection of information about you and yours. This of course is in pursuit of a laudable goal, security in the age of terror.

Is it excessive? It certainly appears to be. Does that matter? Yes. Among other reasons: The end of the expectation that citizens' communications are and will remain private will probably change us as a people, and a country.***

Among the pertinent definitions of privacy from the Oxford English Dictionary: "freedom from disturbance or intrusion," "intended only for the use of a particular person or persons," belonging to "the property of a particular person." Also: "confidential, not to be disclosed to others." Among others, the OED quotes the playwright Arthur Miller, describing the McCarthy era: "Conscience was no longer a private matter but one of state administration."

Privacy is connected to personhood. It has to do with intimate things—the innards of your head and heart, the workings of your mind—and the boundary between those things and the world outside.

A loss of the expectation of privacy in communications is a loss of something personal and intimate, and it will have broader implications. That is the view of Nat Hentoff, the great journalist and civil libertarian. He is 88 now and on fire on the issue of privacy. "The media has awakened," he told me. "Congress has awakened, to some extent." Both are beginning to realize "that there are particular constitutional liberty rights that [Americans] have that distinguish them from all other people, and one of them is privacy."

Mr. Hentoff sees excessive government surveillance as violative of the Fourth Amendment, which protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and requires that warrants be issued only "upon probable cause . . . particularly describing the place to be searched, and the persons or things to be seized."

But Mr. Hentoff sees the surveillance state as a threat to free speech, too. About a year ago he went up to Harvard to speak to a class. He asked, he recalled: "How many of you realize the connection between what's happening with the Fourth Amendment with the First Amendment?" He told the students that if citizens don't have basic privacies—firm protections against the search and seizure of your private communications, for instance—they will be left feeling "threatened." This will make citizens increasingly concerned "about what they say, and they do, and they think." It will have the effect of constricting freedom of expression. Americans will become careful about what they say that can be misunderstood or misinterpreted, and then too careful about what they say that can be understood. The inevitable end of surveillance is self-censorship.

All of a sudden, the room became quiet. "These were bright kids, interested, concerned, but they hadn't made an obvious connection about who we are as a people." We are "free citizens in a self-governing republic."

Mr. Hentoff once asked Justice William Brennan "a schoolboy's question": What is the most important amendment to the Constitution? "Brennan said the First Amendment, because all the other ones come from that. If you don't have free speech you have to be afraid, you lack a vital part of what it is to be a human being who is free to be who you want to be." Your own growth as a person will in time be constricted, because we come to know ourselves by our thoughts.

He wonders if Americans know who they are compared to what the Constitution says they are.

Mr. Hentoff's second point: An entrenched surveillance state will change and distort the balance that allows free government to function successfully. Broad and intrusive surveillance will, definitively, put government in charge. But a republic only works, Mr. Hentoff notes, if public officials know that they—and the government itself—answer to the citizens. It doesn't work, and is distorted, if the citizens must answer to the government. And that will happen more and more if the government knows—and you know—that the government has something, or some things, on you. "The bad thing is you no longer have the one thing we're supposed to have as Americans living in a self-governing republic," Mr. Hentoff said. "The people we elect are not your bosses, they are responsible to us." They must answer to us. But if they increasingly control our privacy, "suddenly they're in charge if they know what you're thinking."

This is a shift in the democratic dynamic. "If we don't have free speech then what can we do if the people who govern us have no respect for us, may indeed make life difficult for us, and in fact belittle us?"

If massive surveillance continues and grows, could it change the national character? "Yes, because it will change free speech."

What of those who say, "I have nothing to fear, I don't do anything wrong"? Mr. Hentoff suggests that's a false sense of security. "When you have this amount of privacy invasion put into these huge data banks, who knows what will come out?" Or can be made to come out through misunderstanding the data, or finagling, or mischief of one sort or another. "People say, 'Well I've done nothing wrong so why should I worry?' But that's too easy a way to get out of what is in our history—constant attempts to try to change who we are as Americans." Asked about those attempts, he mentions the Alien and Sedition Acts of 1798, the Red Scare of the 1920s and the McCarthy era. Those times and incidents, he says, were more than specific scandals or news stories, they were attempts to change our nature as a people.

What of those who say they don't care what the federal government does as long as it keeps us safe? The threat of terrorism is real, Mr. Hentoff acknowledges. Al Qaeda is still here, its networks are growing. But you have to be careful about who's running U.S. intelligence and U.S. security, and they have to be fully versed in and obey constitutional guarantees. "There has to be somebody supervising them who knows what's right. . . . Terrorism is not going to go away. But we need someone in charge of the whole apparatus who has read the Constitution."

Advances in technology constantly up the ability of what government can do. Its technological expertise will only become deeper and broader. "They think they're getting to how you think. The technology is such that with the masses of databases, then privacy will get even weaker."

Mr. Hentoff notes that J. Edgar Hoover didn't have all this technology. "He would be so envious of what NSA can do."

"Privacy is connected to personhood. It has to do with intimate things—the innards of your head and heart, the workings of your mind—and the boundary between those things and the world outside."

"We talk about this now because of Edward Snowden, the National Security Agency revelations, and new fears that we are operating, all of us, within what has become or is becoming a massive surveillance state."

Where is the beginning and end of privacy when a person uses electronic devices. All devices are now wireless and can be intruded upon. They are all made with ways to get into them. By the companies that make the devices, the software, or intercepting wireless transmissions. What about big data the private tech companies are hoarding about us?

One can't even "opt out". Why no outrage over this? Why is it Google's, or Microsoft's, or Apple's, or Amazon's business what I say, where I go, what I buy, or what I write?

Are people saying we must trust them yet not trust the government. The invasion of privacy and our thoughts is coming from the private as well as the government sector.

Snowden called those who would not agree naïve. I agree. I am living it so I understand. Most people do not and appear cannot understand. As I have said they will some day. Maybe now people are waking up to it?Some on the right (and left) are using the surveillance issues for political purposes.. I agree with this from either political point of view. I also submit that we should all be very concerned about what private legal and illegal entities are also doing with the power they wield with all the information they are gathering with and without our consent.

"The 17 pages of this thread are dedicated to those of us who do get it and provoking awareness of just how serious this is. That we have 50,000+ reads for this thread says some of us do get it."

Who are the 50,000 plus readers and how come so few post? Are you sure it isn't the NSA, Google, organized crime, Chinese, Russians, Nigerians or Iranians just sparking hits while they troll the net?

I understand that some do get it yet we don't see general public outrage. Is it because there is outrage or concern that is just not being heard? Or because it still is so few of us who get it?

I listen to Savage and Levin who both view Snowden more positively than other Republicans such as McCain or the Bush crowd. I agree with them too and view him more as a whistleblower than a traitor. While they both express outrage over government surveillance of its own citizens neither to my knowledge says a peep about big corporations, doing the same thing.

I don't get a sense at all that our law enforcement is interested in this either. Unless one is a famous celebrity whose ipad is hacked. All we here about is crime is down. Well violent crime maybe. But white collar is skyrocketing. And it is bed with our politicians.

"Are you sure it isn't the NSA, Google, organized crime, Chinese, Russians, Nigerians or Iranians just sparking hits while they troll the net?"

Some hits perhaps are computer driven, Google, etc, but I there are different hit rates on different topics based on interest level. The Dog Brothers organization attracts the interest of people who never join and the forum has readers who never post - including 'famous people caught reading the forum. -----

I disagree with you on Snowden. He did not make any effort to become a legitimate whistle blower and his leaks jeopardize our security.

And yet, apart from some voices from the antiwar left and the libertarian right (on foreign policy there is considerable overlap between the Tea Party and the Occupy movement), the reaction from this deceived public for the most part has been strangely muted. It is not just the somewhat contradictory nature of the polls taken this summer, which have shown the public almost evenly split on whether the seemingly unlimited scope of these surveillance programs was doing more harm than good. It is akso that, unlike on issues such as immigration and abortion, much of the public outrage presupposed by news coverage of the scandal does not, in reality, seem to exist.

It is true that the revelations have caused at least some on the mainstream right, both in Congress and in conservative publications like National Review, to describe the NSA's activities as a fundamental attack on the rights of American citizens. The trend so worries more hawkish Republicans that one of their leaders, Rep. Peter King of New York, recently warned that "too many Republicans and conservatives have become Michael Moores." For their part, mainstream Democrats find themselves in the uncomfortable position of either defending what many of them view as indefensible or causing trouble for a beleaguered president who seems increasingly out of his depth on most questions of national security and foreign policy.

Last week, thanks in part to documents that I and the Electronic Privacy Information Center obtained under the Freedom of Information Act, the American public learned that the Department of Homeland Security is making considerable progress on a computerized tool called the Biometric Optical Surveillance System. The system, if completed, will use video cameras to scan people in public (or will be fed images of people from other sources) and then identify individuals by their faces, presumably by cross-referencing databases of driver’s license photos, mug shots or other facial images cataloged by name.

While this sort of technology may have benefits for law enforcement (recall that the suspects in the Boston Marathon bombings were identified with help from camera footage), it also invites abuse. Imagine how easy it would be, in a society increasingly videotaped and monitored on closed-circuit television, for the authorities to identify antiwar protesters or Tea Party marchers and open dossiers on them, or for officials to track the public movements of ex-lovers or rivals. “Mission creep” often turns crime-fighting programs into instruments of abuse.

At the moment, there is little to no regulation or legal oversight of technologies like the Biometric Optical Surveillance System. We need to implement safeguards to protect our civil liberties — in particular, our expectation of some degree of anonymity in public.

The Department of Homeland Security is not the only agency developing facial-surveillance capacities. The Federal Bureau of Investigation has spent more than $1 billion on its Next Generation Identification program, which includes facial-recognition technology. This technology is expected to be deployed as early as next year and to contain at least 12 million searchable photos. The bureau has partnerships with at least seven states that give the agency access to facial-recognition-enabled databases of driver’s license photos.

State agencies are also participating in this technological revolution, though not yet using video cameras. On Monday, Ohio’s attorney general, Mike DeWine, confirmed reports that law enforcement officers in his state, without public notice, had deployed facial-recognition software on its driver’s license photo database, ostensibly to identify criminal suspects.

A total of 37 states have enabled facial-recognition software to search driver’s license photos, and only 11 have protections in place to limit access to such technologies by the authorities.

Defenders of this technology will say that no one has a legitimate expectation of privacy in public. But as surveillance technology improves, the distinction between public spaces and private spaces becomes less meaningful. There is a vast difference between a law enforcement officer’s sifting through thousands of hours of video footage in search of a person of interest, and his using software to instantly locate that person anywhere, at any time.

A person in public may have no reasonable expectation of privacy at any given moment, but he certainly has a reasonable expectation that the totality of his movements will not be effortlessly tracked and analyzed by law enforcement without probable cause. Such tracking, as the federal appellate judge Douglas H. Ginsburg once ruled, impermissibly “reveals an intimate picture of the subject’s life that he expects no one to have — short perhaps of his wife.”

Before the advent of these new technologies, time and effort created effective barriers to surveillance abuse. But those barriers are now being removed. They must be rebuilt in the law.

Two policies are necessary. First, facial-recognition databases should be populated only with images of known terrorists and convicted felons. Driver’s license photos and other images of “ordinary” people should never be included in a facial-recognition database without the knowledge and consent of the public.

Second, access to databases should be limited and monitored. Officers should be given access only after a court grants a warrant. The access should be tracked and audited. The authorities should have to publicly report what databases are being mined and provide aggregate numbers on how often they are used.

We cannot leave it to law enforcement agencies to determine, behind closed doors, how these databases are used. With the right safeguards, facial-recognition technology can be employed effectively without sacrificing essential liberties.

Ginger McCall, a lawyer and privacy advocate, is the founder of Advocates for Accountable Democracy.

The tides of war are not receding. They are accelerating. The good and the bad of the human race is on full display on the internet. Nothing has changed. Just becoming more plain and transparant to see. The endless battle between good and evil. The need for encryption. The need to break encryption. The need to prevent breaking encryption. It never ends. It is becoming as mind boggling as the the universe.

WASHINGTON—The National Security Agency's searches of a database containing phone records of millions of Americans violated privacy protections for three years by failing to meet a court-ordered standard, intelligence officials acknowledged Tuesday.

They said the violations continued until a judge ordered an overhaul of the program in 2009.

Since the breadth of the phone-records collection came to light through leaks from former NSA contractor Edward Snowden, lawmakers and top U.S. officials have defended the program. They have said that for all queries of the database, the NSA must show a "reasonable articulable suspicion" that the phone number being targeted is associated with a terrorist organization.

Between 2006 and 2009, however, of the 17,835 phone numbers checked against incoming phone records, only about 1,800 were based on that reasonable suspicion standard, officials said.

In a March 2009 order that was declassified Tuesday, Judge Reggie Walton of the Foreign Intelligence Surveillance Court said the government "frequently and systematically violated" the procedures it had said it was following. The judge criticized what he described as "repeated inaccurate statements made in the government's submissions."

The revelations called into question the NSA's ability to run the sweeping domestic surveillance programs it introduced more than 10 years ago in the wake of the 2001 terrorist attacks.

Officials said the violations were inadvertent, because NSA officials didn't understand their own phone-records collection program. Gen. Keith Alexander, the head of the NSA, told the judge in a 2009 legal declaration that "from a technical standpoint, there was no single person who had a complete technical understanding of the [business record] system architecture."

Top U.S. officials, including Gen. Alexander, have repeatedly reassured lawmakers and the public that the phone-records program has been carefully executed under oversight from the secret national security court.

"This is not a program where we are out freewheeling it," Gen. Alexander said in June. "It is a well-overseen and a very focused program."

Until Tuesday, officials hadn't described the period in which the program repeatedly violated court orders. They made public the violations as part of a court-ordered release of documents in lawsuits by the Electronic Frontier Foundation and the American Civil Liberties Union.

The release included roughly 1,800 pages of documents, including orders from the secret Foreign Intelligence Surveillance Court and government correspondence with the court.

The NSA violations occurred between 2006, when the phone-records program first came under court supervision, and 2009, when NSA officials told Judge Walton the program had been conducting searches using thousands of phone numbers that didn't meet court standards. Before 2006, the program was run without court supervision.

The program was developed under a provision of the Patriot Act that allows the NSA, through the Federal Bureau of Investigation, to collect business records "relevant to an authorized investigation." The NSA determined that nearly all U.S. phone-call records were "relevant" to its terrorism investigations, because it needed all the calls in order to determine with whom suspects were communicating.

The records, called "metadata," included phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism. The content of the calls isn't obtained under this program.

The NSA used an "alert list" of nearly 18,000 numbers of "counterterrorism interest" to screen phone records on a daily basis and determine which ones it should look at most closely, an intelligence official said. New phone records that had a relationship to those on the alert list were given a higher priority for subsequent possible searches that would be done if NSA could meet the "reasonable articulable suspicion" standard.

When the NSA acknowledged problems in the phone records surveillance program in March 2009, Judge Walton was upset enough to order Justice Department lawyers to intervene and help fix the program, officials said.

It wasn't until September 2009 that the problems were resolved to the judge's satisfaction, officials said. The program was overhauled so that all searches met the court-ordered standard, and the NSA established a new compliance office, which now oversees the phone data and other NSA spy programs.

In the interim, they said, the NSA had to get approval from the court on a case-by-case basis to search its database, though there was an exception allowing immediate searches in emergency cases. Officials said the NSA obtained court approval in specific cases multiple times.

That was a key time period in U.S. counterterrorism efforts, because in August and September of 2009 authorities were chasing a suspected terrorist bomb plotter, Najibullah Zazi, in a plan to detonate bombs aboard the New York City subway system.

Since revelations about the NSA's surveillance programs first emerged in June through Mr. Snowden's leaks to news media, the Obama administration has pointed to the Zazi case as a prime example of how such programs help stop terrorist attacks.

On Tuesday, intelligence officials said they didn't know how the problems in the phone-records program may have affected the Zazi case. They also said they couldn't remember if anyone at the NSA was reassigned or left the agency as a result of the errors. James Clapper, the director of national intelligence, said the NSA's discovery of the problems with the phone-records program and its reporting to the court show that oversight of the NSA surveillance programs works as designed.

The documents released Tuesday "are a testament to the government's strong commitment to detecting, correcting and reporting mistakes," Mr. Clapper said in a statement. He blamed the errors on the "complexity of the technology."

Very frustrating that this is an interview without a transciption. The conversation seems quite good, but thirty minutes of undivided attention is more than I have to give out of my day and listening in the background as I work means I miss a lot. Like most people, I read A LOT faster than people talk.

Very frustrating that this is an interview without a transciption. The conversation seems quite good, but thirty minutes of undivided attention is more than I have to give out of my day and listening in the background as I work means I miss a lot. Like most people, I read A LOT faster than people talk.

Understood. Wittes is a smart guy who surrounds himself with other smart people. I thnk you would appreciate the discussion, if/when you get time. Luckily, it is exactly my work to listen to this.

‘Are you sexually active? If so, with one partner, multiple partners or same-sex partners?”

Be ready to answer those questions and more the next time you go to the doctor, whether it’s the dermatologist or the cardiologist and no matter if the questions are unrelated to why you’re seeking medical help. And you can thank the Obama health law.

“This is nasty business,” says New York cardiologist Dr. Adam Budzikowski. He called the sex questions “insensitive, stupid and very intrusive.” He couldn’t think of an occasion when a cardiologist would need such information — but he knows he’ll be pushed to ask for it.

The president’s “reforms” aim to turn doctors into government agents, pressuring them financially to ask questions they consider inappropriate and unnecessary, and to violate their Hippocratic Oath to keep patients’ records confidential.

Embarrassing though it may be, you confide things to a doctor you wouldn’t tell anyone else. But this is entirely different.

Doctors and hospitals who don’t comply with the federal government’s electronic-health-records requirements forgo incentive payments now; starting in 2015, they’ll face financial penalties from Medicare and Medicaid. The Department of Health and Human Services has already paid out over $12.7 billion for these incentives.

Dr. Richard Amerling, a nephrologist and associate professor at Albert Einstein Medical College, explains that your medical record should be “a story created by you and your doctor solely for your treatment and benefit.” But the new requirements are turning it “into an interrogation, and the data will not be confidential.”

Lack of confidentiality is what concerned the New York Civil Liberties Union in a 2012 report. Electronic medical records have enormous benefits, but with one click of a mouse, every piece of information in a patient’s record, including the social history, is transmitted, disclosing too much.

The social-history questions also include whether you’ve ever used drugs, including IV drugs. As the NYCLU cautioned, revealing a patient’s past drug problem, even if it was a decade ago, risks stigma.

On the other end of the political spectrum is the Goldwater Institute, a free-market think tank. It argues that by requiring everyone to have health insurance and then imposing penalties on insurers, doctors and hospitals who don’t use the one-click electronic system, the law is violating Americans’ medical privacy.

The administration is ignoring these protests from privacy advocates. On Jan. 17, HHS announced patients who want to keep something out of their electronic record should pay cash. That’s impractical for most people.

There’s one question they can’t ask: Thanks to the NRA, Section 2716 of the ObamaCare law bars the federal government from compelling doctors and hospitals to ask you if you own a firearm.

But that’s the only question they can’t be told to ask you.

Where are the women’s rights groups that went to the barricades in the 1980s and 1990s to prevent the federal government from accessing a woman’s health records? Hypocritically, they are silent now.

Patients need to defend their own privacy by refusing to answer the intrusive social-history questions. If you need to confide something pertaining to your treatment, ask your doctor about keeping two sets of books so that your secret stays in the office. Doctors take the Hippocratic Oath seriously and won’t be offended.

Are such precautions paranoid? Hardly. WikiLeaker Bradley Manning showed how incompetent the government is at keeping its own secrets; incidents where various agencies accidentally disclose personal data like Social Security numbers are legion. And that’s not to mention the ways in which commercial databases are prone to hacking and/or exploitation.

Originally posted at: CapitalistExploits.atImagine for a second you're a terrorist intent on inflicting unimaginable harm on your enemy. Now let's further imagine that your enemy is the United States...The sun rises over your holy mother land, a land now inhabited by the infidels. You don your Kalishnikov, climb out of your cave, scan the skies searching for drones. Stroking your beard you wonder what the virgins do with their time between incoming martyrs. Then you contemplate how you might go about your Jihadist day, seeking (un)holy vengeance against the great Satan?You pose a grave danger to the citizens of the United States - their government tells you so - you've seen it on CNN (satellite dish in the cave, of course). This brings you immense satisfaction and pride.As you survey some stray goats wandering the barren hillside you're troubled as to how this can be so. Your options appear severely limited.1. You could capture a passing, stray American NGO, decapitate them on video and post it for the world to see - along with a mouth frothing, unintelligible rant in a language few understand. Impact negligible...and lots of time spent stalking, capturing, struggling with your victim, etc. Then there's the whole decapitation thing...messy, very messy. Best to go back inside the cave and smoke your fine Afghan Hashish.2. You consider another popular option. You could find yourself a locale full of infidels, oh say maybe a heavily-fortified US military base, strap a bomb to your ass and rush the gates. Impact better...however this one takes a bit of planning - gotta make sure not to blow the bomb in any practice runs. Then of course there's the nagging question as to whether the virgins really exist. Maybe a rethink is in order.Sitting comfortably back in your cave you fire up the satellite dish and tune in to watch Wolf. To your amazement you find that you don't actually have to do anything! Your wildest fantasies are coming true...OK, not all; the virgins remain as elusive as ever.What you find is that your enemy is being dealt some terrible blows without your having to do much more than smoke, herd and stare at your sandals - which you realise really do need replacing.The damage is being done not by swish bang fighter jets from an invading army, not by any Jihadist bombers with scant regard for their innards, nor from any of your fellow sky-gazing, bearded, cave-dwelling brethren.No, instead these blows come from none other than your enemies very own National Security Agency. The very chaps entrusted to protect the citizens of the great Satan!To understand how this works, lets take a step back and consider what has allowed America to become so powerful.In a phrase, "economic dominance". It is how the United States won the cold war and how it grew to be the greatest nation on earth. Capitalism was allowed to do what it inevitably does...create wealth. Sadly enoughcapitalism (now cronyized), economic and personal freedom are undergoing exponential decay.It costs money to become a military power. $695.7 billion at last count. More than any other nation on earth. A truly astonishingly, grotesque amount of waste to be sure. Pretty sure we could have eradicated poverty and disease with that "war chest" by now!Financing this military machine, and indeed the entire government structure has to come from somewhere. Debt is one avenue, and whooboy are they using that particular lever. In the long run this will destroy the ability to wage wars. Hope springs eternal...But let's look at what effect the NSA's forcing of US companies to corrupt their systems and provide illegal spying capabilities is now doing to America.The US technology industry is by far the biggest in the world. However, consumers both in the US and especially outside its borders are beginning to realise what Ladar Levison, the founder of Lavabit meant when he said:"This experience has taught me one very important lesson: without congressional action or astrong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States."I thought about these comments when talking with a businessman in Asia yesterday. He said to me:“Chris, we simply can't take the risk of our proprietary business intelligence getting into competitors/American businesses hands. We're looking at moving everything, our hardware, operating systems and we've already ditched all Microsoft software. Our business depends on our IP and proprietary information.”Petrobras was spied on. Visa has a back door...as does SWIFT. Forget Skype, Facebook, Twitter, even the sacred Apple has been complicit!Dilma Rousseff, Brazil's President cancelled a trip to the US until Mr. Obama can give her a satisfactory answer as to why a country that is supposedly a "friend" of the US is being spied on. According to the BBC:"Brazilian President Dilma Rousseff has called off a state visit to Washington next month in a row over allegations of US espionage."Oooooh, someone is in trouble!So, what do you do if you're a businessman with proprietary information that needs to be stored and shared? Parchment and quills won't work. You're still going to have to use technology, the only question is what technology and from where.US technology companies that deal with data, Internet, etc, just like the US government, are increasingly being viewed as something that nobody in their right mind wants anything to do with. Pariahs, really.While I don't personally use it, I would now never even consider using any Microsoft software. I'm even thinking of ditching my Mac. I don't use a smartphone - never have. Why take the risk?Convenience? Hmmmm, how convenient is a tax audit or a crazy stalker? Wait, those are the same thing, right?In regards to using Windows for example...there are a myriad of competing options, many of them superior in quality. Not to mention, I don't want to reward a company that treats me with disrespect, lies to me and steals my private information...allegedly of course. I'm their customer, yet they abuse me? No thank you.From a macro perspective this has the potential to be far bigger than most realise, and I'm seeing the repercussions begin to unfold as normal, everyday people come to understand what exactly the threats are, and what they mean!The danger of a government spying on you does not stop at simply analysing your spending habits and sharing that information with the tax department, who then cross check it with your tax bill, though this IS happening.The risks run deep my friends, and even though the cat is out of the bag, it seems a non-event to the NSA and the US government. It's business as usual. I don't believe history is going to look back on these shenanigans kindly.This is a trend worth following because fortunes are going to be lost - and made - as this continues to play itself out.On a more personal level we can and must take steps NOW to protect ourselves. This involves carefully chosen hardware, software and understanding what our "digital self" looks like and how to go about protecting it.Our friend and colleague “John”, an anarchocryptologist (is that a word?) by his own admission, has kindly put together a two-part report on laying the ground work for protecting your "digital self." Part I was released on Tuesday, and the ink has just dried on Part 2.You can get a copy of both parts by clicking hereSo, if you, like us believe that our privacy is worth protecting, that spying governments are not as benign as they suggest, then I encourage you to read it. It's FREE, unlike most of us any longer.If not, then feel free to go back to the Kardashians and your bag of Cheetos, while updating your Facebook status and Instagram'ing the world a picture of your double bacon burger...with cheese.You'll be just fine...really.- Chris"Civilization is the progress toward a society of privacy. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men." - Ayn Rand